Ethics and the Law: Don’t Act Ugly II - By Robert Pelton

The following comments are from Ethics Committee member Brent Mayr in response to last month’s column, “Don’t Act Ugly”:

My two cents to add to an already valuable article:

One thing I think we overlook is that for us, as criminal defense attorneys, we are naturally inclined not to snitch. We cross-examine snitches and make them out to be the scum of the earth. And yet the rules require us to do exactly that when we know that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer. So how do we deal with this internal conflict between what the ethics rules require and our innate nature to not want to snitch? I think, first, we have to recognize the conflict. Snitching to gain some advantage is never commendable. We see that with the snitches who testify against our clients on a daily basis. On the other hand, if you see a crime being committed and you do something to intervene to stop that crime, even if it means just calling 911, then it is commendable. You are seen not as a snitch, but as a concerned citizen who cares about protecting others. The comment to the rule emphasizes this, explaining, “Reporting a violation is especially important where the victim is unlikely to discover the offense.”

I think when one is faced with knowledge of another lawyer’s misconduct, we truly have to engage in “self-searching” to determine the reason for acting upon that knowledge. Second, we have to recognize that the rule is designed to maintain the integrity of our pro­fession. If we report petty complaints for petty reasons or make serious accusations for ma­licious reasons, this purpose is defeated and we just look like a bunch of whiny sissies or selfish pricks. But if we see or learn of another lawyer doing something and ask ourselves, “What would the general public think if they learned that this lawyer was doing ____,” and it causes us to shiver, that’s when the call definitely needs to be made to the State Bar. Third, and finally, I think we need to remember the maxim, “What goes around, comes around.” At this time, a number of complaints are being leveled against a number of prosecutors and former prosecutors. While generally there has been cordiality between both sides of the bar, reporting what is believed to be an ethical violation on a member on the other side of the bar, disrupts that cordiality. Instead of battling in the courtroom, the war spreads outside the courtroom. The next thing you know, several members of the defense bar are getting letters from the State Bar. Clients get harsher offers, and then next thing you know, we’re having to resort to our appellate courts for assistance. Just like we, as criminal defense attorneys, must deal with the conflict between what the rules require and our nature drives us to do and try to maintain a balance between the two, I think we need to mindful of the peace and balance between opposite sides of the bars. Otherwise, we end up like civil litigators (joke—I love and respect many of my civil brethren). Of course, none of these justify acting or failing to act upon knowledge of misconduct. The rule makes it clear that knowledge of a violation that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer requires notifying the State Bar, period. However, for us criminal defense attorneys, I think if we consider these things, it will help make the decision to act or not to act an easy one.